Can a Catholic bishop legally say publicly that, in his personal opinion, it would be a sin for a Catholic to vote for Obama?

Should he say that?

Perhaps to your surprise, the answer to both questions is: Yes.

Is it legal for a Catholic bishop to say that?

In 2006, Mark W. Everson, then Commissioner of the IRS, described the applicable law: “In 1954, Congress saw the need to separate charities and churches from politics. An amendment was offered on the floor of the Senate by then-Senator Lyndon Johnson. The Johnson Amendment is found within . . . section 501(c)(3) of the Internal Revenue Code. In its present form, the law states that charities, including churches, are not allowed to ‘participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office.”

The Section 501(c)(3) tax exemption is treated in the law as a subsidy. What the government subsidizes it can regulate, pursuant to the TANSTAAFL doctrine: “There Ain’t No Such Thing As A Free Lunch.” For a church to endorse or oppose a political candidate would violate Section 501(c)(3). But there is another way.

The fact sheet published by the IRS, “Election Year Activities and the Prohibition on Political Campaign Intervention for Section501(c)(3) Organizations” (“Last Reviewed or Updated: October 7, 2011”), has this to say about “Individual Activity by Organization Leaders:”

The political campaign intervention prohibition is not intended to restrict free expression on political matters by leaders of organizations speaking for themselves, as individuals. Nor are leaders prohibited from speaking about important issues of public policy. However, for their organizations to remain tax exempt under section 501(c )(3), leaders cannot make partisan comments in official organizational publications or at official functions of the organization. To avoid potential attribution of their comments outside of organization functions and publications, organization leaders who speak or write in their individual capacity are encouraged to clearly indicate that their comments are personal and not intended to represent the views of the organization.

Example [1]: President A is the Chief Executive Officer of Hospital J, a Section 501(c)(3) organization, and is well known in the community. With the permission of five prominent healthcare industry leaders, including President A, who have personally endorsed Candidate T, Candidate T publishes a full page ad in the local newspaper listing the names of the five leaders. President A is identified in the ad as the CEO of Hospital J. The ad states: “Titles and affiliations of each individual are provided for identification purposes only.” The ad is paid for by Candidate T’s campaign committee. Because the ad was not paid for by Hospital J, the ad is not otherwise in an official publication of Hospital J, and the endorsement is made by President A in a personal capacity, the ad does not constitute campaign intervention by Hospital J.

Example [2]: President B is the president of University K, a Section 501(c)(3) organization. University K publishes a monthly alumni newsletter that is distributed to all alumni of the university. In each issue, President B has a column titled “My Views.” The month before the election, President B states in the “My Views” column, “It is my personal opinion that Candidate U should be reelected.” For that one issue, President B pays from his personal funds the portion of the cost of the newsletter attributable to the “My Views” column. Even though he paid part of the cost of the newsletter, the newsletter is an official publication of the university. Because the endorsement appeared in an official publication of University K, it constitutes campaign intervention by University K.

Example [3]: Minister C is the minister of Church L, a Section 501(c)(3) organization and Minister C is well known in the community. Three weeks before the election, he attends a press conference at Candidate V’s campaign headquarters and states that Candidate V should be reelected. Minister C does not say he is speaking of behalf of Church L. His endorsement is reported on the front page of the local newspaper and he is identified in the article as the minister of Church L. Because Minister C did not make the endorsement at an official church function, in an official church publication or otherwise use the church’s assets, and did not state that he was speaking as a representative of Church L, his actions do not constitute campaign intervention by Church L.

Example [4]: Chairman D is the chairman of the Board of Directors of M, a Section 501(c)(3) organization that educates the public on conservation issues. During a regular meeting of M shortly before the election, Chairman D spoke on a number of issues, including the importance of voting in the upcoming election, and concluded by stating, “It is important that you all do your duty in the election and vote for Candidate W.” Because Chairman D’s remarks indicating support for Candidate W were made during an official organization meeting, they constitute political campaign intervention by M.

Examples [1] and [3] describe ways in which individual Catholic bishops and priests could personally endorse a candidate and urge people to vote for that candidate, without jeopardizing the tax-exempt status of the Church. Those examples would support even more clearly the right of a Catholic bishop or priest to say, in his personal and individual capacity and without explicitly and personally endorsing any candidate, that, in his opinion, “proportionate reasons” do not exist to justify a vote for Obama and, therefore, for a Catholic to vote for Obama would be, in objective terms, a sin.

The IRS fact sheet is informal and not an authoritative interpretation. However, there is nothing in those fact sheet statements that conflicts with the language of Section 501(c)(3). On this point, the fact sheet offers what clearly appears to be a reliable interpretation by the IRS of the statute it enforces.

Should a Catholic bishop say that?

Yes.

First, let’s look at Obama’s health care mandate. His revision of the original mandate issued by HHS Secretary Kathleen Sebelius continues to exempt “religious employers” from the duty to provide sterilization and contraception, including abortifacients, to employees without cost to the employee. The term “religious employers,” however, is so narrowly defined that practically no Catholic hospital, university, or other institution would qualify for it.

Obama’s revision was described by Cardinal Timothy Dolan, President of the U.S. Conference of Catholic Bishops (USCCB): “Non-exempt religious organizations that object to these services may offer a health plan without them—that is, they do not list the services in their plan and they do not pay directly for them. But the insurance issuer selling this plan must offer to add these services for each of the organization’s employees free of charge.” That coverage is still provided as part of the objecting employer’s plan, financed in the same way as the rest of the coverage offered by the employer. In other words, the religious employer will predictably pay for it in some way. “Secular employers must provide such coverage . . . All insurers without exception are covered by the mandate to provide these services without charge . . . [S]elf-insured plans, where a religious organization is both employer and insurer, and . . . student health plans offered by religious colleges and universities . . . will [apparently] be required to offer the objectionable coverage . . . [T]here . . . is no exemption for Catholic and other individuals who work for secular employers; for such individuals who own or operate a business; or for employers who have a moral (not religious) objection.” (The Corner, Kathryn Jean Lopez, 2/10/2012.)

This is not an exclusively Catholic issue. Religious groups across the spectrum object to the mandate as a violation of the religious liberty guaranteed by the Constitution. The mandate strikes at the heart of a civilized legal order protective of freedom and the common good. The Catholic Church, however, is the immediate and preferred target of the Obama Regime. This is so because the elemental conflict is between Satan and Christ “who lives in the Church, and through her teaches, governs and sanctifies.” Pope Paul VI, Ecclesiam Suam (1964), nos. 30, 35. The mandate offers a teaching moment for the Catholic Church on conscience and contraception as well as religious liberty:

“First, the nature of conscience . . . Conscience is a judgment of reason by which the human person recognizes the moral quality of a concrete act.” Catechism of the Catholic Church, no. 1796. Once conscience is divorced from that duty to objective truth, it becomes a mere expression of personal, even idiosyncratic, taste with no transcendent claim to immunity against oppression by the State. The Catholic Church is well-suited, and has the duty, to reawaken the American people to the conviction that conscience is transcendent because it is a gift of God. “Conscience is man’s most secret core, and his sanctuary. There he is alone with God whose voice echoes in his depths.” Catechism, no. 1795; see also Pope John Paul II, Veritatis Splendor, no. 32.

Second, the reality of contraception. The Anglican Lambeth Conference of 1930 was the first time any Christian denomination ever said that contraception could ever be a morally good choice. Ever since then, the Popes have courageously maintained the traditional teaching. Pope Paul VI issued Humanae Vitae in 1968. Since that time, and even for some years before, the American bishops, with exceptions, have miserably failed in their duty to educate Catholics and others on the positive, hopeful teaching of the Church on marriage and the gift of procreation. Space limits preclude a detailed discussion here, but once men and women claim the right to separate the unitive and procreative aspects of the conjugal act, they make themselves arbiters of whether and when life shall begin. Inevitably they claim the right to decide when it shall end, as in abortion and euthanasia. Paul VI predicted in Humanae Vitae that the acceptance of contraception would lead to a collapse of morals, the treatment of women as objects, and the conferral on the State of a supremely dangerous power over life and death. He was right. President Obama has given the Catholic bishops a priceless opportunity to recall the American people to the reality of contraception and the disasters resulting from its acceptance. We pray that, this time, they will perform that duty. (See Charles E. Rice, Obama’s ‘Accommodation’).

The immediate issue for the Catholic bishops is how they will respond to the obviously deliberate transformation of American law and culture into a totalitarian model at war with the moral and social teachings of the Catholic Church. If you doubt that things are that serious, think about the recent decree of the Army’s Office of the Chief of Chaplains that forbade Catholic chaplains to read, at Mass, Archbishop Timothy Broglio’s letter condemning the health care mandate. After discussion, Archbishop Broglio agreed to remove the sentence, “We cannot—we will not comply with this unjust law,” and the Secretary of the Army John McHugh allowed the abridged letter to be read. This may seem to be a small thing. But consider: The State dictated to the Church what it may—and may not—include during the celebration of the Mass. That is a big deal. It offers a taste of what is to come if the Obama Regime continues unchecked for another term.

Mr. Obama is America’s Lenin—a socialist revolutionary bent on cultural transformation. His contraceptive mandate is unprecedented in U.S. history: For the first time, private companies—health insurers—are being forced to provide a product or service for free. Moreover, Mr. Obama is dictating to the Catholic Church how to run its internal affairs and administer its social services . . . Under Mr. Obama, Washington, not the Vatican, is the final authority on what Catholic institutions must do—even if it violates their conscience rights. His mandate is a direct assault on the First Amendment. Mr. Obama is behaving like an anti-Christian, anti-religious zealot . . . He has shown us who he truly is—a faithful disciple of Marx. Mr. Obama has declared an ideological war on Christianity. If he wins a second term, his persecution of Christians will only get worse.

Mr. Kuhner’s regrettably credible point is that the American people elected a communist as President. And they have one last chance—this November—to save themselves, their children, and their various churches from the ultimate consequences.

Catholic bishops and their bureaucracy in the USCCB have drawn well-merited criticism for their timidity and worse, over the course of decades, in promoting in some of their activities the agenda of the left. The facetious description of the bishops’ bureaucracy as “the Democratic Party at prayer” has the ring of truth. The bishops now protest—rightly and admirably—against an enforcement of Obamacare that was readily foreseeable. And without the support of the bishops and their bureaucracy, Obamacare would not have been enacted.

Obamacare was enacted against the manifest will of the American people, in disregard of the legislative process and by a level of bribery, coercion, and deception that was as open as it was unprecedented. The USCCB was decisive in obtaining that enactment through a selective and practically exclusive focus on abortion, conscience, euthanasia, and immigration. That implicitly gave a free pass to Obamacare’s massive violation of the principle of subsidiarity and its potential for abuse capsulized by Nancy Pelosi’s remark that “[W]e have to pass the bill so we can find out what is in it, away from the fog of the controversy.” As recently as October 12, 2011, the USCCB’s Committee on Pro-Life Activities, in commendably urging legislation to protect conscience rights and prevent federal funding of abortion, nevertheless said that “with the passage of [Obamacare], our country took an important step toward ensuring access to health coverage for all Americans.” Amazing. Makes you wonder whether the bishops still believe that, even now.

It can fairly be said that the Catholic bishops got us into this mess—the assault by the Obama Regime on religious liberty. They have a special duty to try to get us out of it. This is not the time, however, for bishop-bashing. They are now fighting the good fight, admirably and courageously. They deserve our entire support and our prayer.

Catholic bishops, however, have a special duty to Catholic voters. For decades, the American Church has debated whether a Catholic can vote for a pro-abortion candidate. The result, due in large part to the timidity of bishops, is that abortion is widely seen as merely one issue among others. This has worked to the advantage of Democratic candidates, including Obama who was elected with 54% of the Catholic vote. In his 2004 memorandum to the United States bishops on “Worthiness to Receive Holy Communion, General Principles,” Cardinal Joseph Ratzinger (now Pope Benedict XVI), who was then prefect of the Congregation for the Doctrine of the Faith, said the material cooperation involved in voting for a pro-abortion candidate “can be permitted in the presence of proportionate reasons.”

President Obama has taken to a new and contemptuous level his commitment to an intrinsically evil pro-death, anti-family agenda. His health care mandate confirms that he has made himself, deliberately and personally, the Chief Persecutor of the Catholic Church. Can it seriously be argued that “proportionate reasons” exist to justify a Catholic in voting to give Obama another term in which he will complete his agenda without hindrance by re-election concerns? The answer is obvious: No, there are no “proportionate reasons” to justify a Catholic, or anyone else, voting for Obama.

Each Catholic bishop and each Catholic priest, especially a pastor and any other priest who is a public figure, has an individual duty, in accord with the IRS guidance, to assert publicly, in his personal capacity, that for a Catholic to vote for Obama would be so lacking in “proportionate reasons” that it would be, in objective terms, a sin. That personal opinion should be stated explicitly with reference to Obama and in terms so clear that Boobus Americanus, and even academics in “Catholic” universities, could not misunderstand. Individual bishops and priests who perform that gravely serious duty will merit gratitude unto future generations. Each one has to choose. Those who fail to speak are entitled, of course, to respect for their priesthood. But they will bring on themselves a merited reproach for their refusal to speak the truth. We have to pray not only for Catholic bishops and priests, but also for clergy of all faiths. All of them have the same opportunity and duty to speak. We have to pray for President Obama. And for our country.

NOTE: This article presents the personal opinions of the author and is not intended to represent the views of the Wanderer Forum Foundation, of which he is president.

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About charleserice

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.
Professor Rice was born in 1931, received the B.A. degree from the College of the Holy Cross, the J.D., from Boston College Law School and the LL.M. and J.S.D. from New York University. He served in the United States Marine Corps and is a Lt. Col. in the Marine Corps Reserve (Ret.). He practiced law in New York City and taught at New York University Law School and Fordham Law School before joining, in 1969, the faculty of law at Notre Dame. He served for eight years as State Vice-Chairman of the New York State Conservative Party.
From 1981 to 1993, Professor Rice was a member of the Education Appeal Board of the U.S. Department of Education. He has served as a consultant to the U.S. Commission on Civil Rights and to various Congressional committees on constitutional issues and is an editor of the American Journal of Jurisprudence. He is a member of the governing boards of Franciscan University of Steubenville.
Among his books are Freedom of Association; The Supreme Court and Public Prayer, The Vanishing Right to Live; Authority and Rebellion; Beyond Abortion: The Theory and Practice of the Secular State; No Exception: A Pro-Life Imperative; 50 Questions on the Natural Law; The Winning Side: Questions on Living the Culture of Life; and Where Did I Come? Where Am I Going? How Do I Get There?, co-authored with Dr. Theresa Farnan. His most recent book is “What Happened to Notre Dame?”
He is faculty advisor and assistant coach of the Notre Dame Boxing Club. He and his wife, Mary, have ten children and they reside in Mishawaka, Indiana.